Midnight Cowboy Part 2: Taking Bush’s HHS Regulation to Court

Jodi Jacobson

National organizations join Connecticut and six other states in lawsuits opposing HHS's new "provider conscience clause."  Connecticut Attorney General Richard Blumenthal calls the rule a "legal time bomb that threatens to blow apart women's rights."

The National Family Planning and Reproductive Health Association (NFPRHA) in conjunction with the American Civil Liberties Union today joined Connecticut Attorney General Richard Blumenthal and the Planned Parenthood Federation of America (PPFA) in filing separate but parallel federal court lawsuits seeking to invalidate the “provider conscience rule” published by the Department of Health and Human Services (HHS) in December.

The HHS rule, one among a set of “midnight regulations” put forth in the waning days of the Bush Administration, was first released in draft form last summer, formally published in the federal register on December 19th, and will go into effect on January 19th, the eve of Inauguration Day.  The rule, extensively covered on Rewire, seriously jeopardizes patients’ access to health care information and services by allowing employees and even volunteers of clinics and hospitals receiving government funding to deny access to a wide variety of medical services.  As Jessica Arons of the Center for American Progress noted, the rule ostensibly protects only employees who object to abortion and sterilization, but “is written so vaguely that it could also apply to contraception, fertility treatments, HIV/AIDS services, gender reassignment, end-of-life care, or any other medical practice to which someone might have a personal moral (not even religious) objection.” 

The groups are seeking an injunction against enforcement of the rule, calling it, in Attorney General Blumenthal’s words, “an unconscionable and unconstitutional midnight regulation and a ticking legal time bomb that threatens to blow apart vital women’s rights on Inauguration Day.”

An injunction will prevent the rules from going into effect; the groups also seek a declaratory judgment that would find the rules unconstitutional. The injunction also provides protection for patients until the Obama administration can initiate the regulatory process required to reverse the Bush rule.

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The lawsuits are based on several claims, including that the process of developing, vetting and publishing the rule was flawed, and that the published rule exceeds the authority of the Administration because it is in conflict with existing laws, such as the Weldon and Church Amendments and Title X.  The rule fails to clearly define “abortion” (many believe purposefully so) allowing individual providers to equate any form of contraception with abortion, going far beyond the legal and medical definitions of the term.  The rule also allows for denial of care or services based on any form of moral, religious, or personal belief.  Given the vagueness of the statute, noted Cecile Richards, President and CEO of Planned Parenthood Federation of America, “providers who do not believe in pre-marital sex could deny unmarried couples access to counseling on and testing and treatment for sexually transmitted infections; people who equate emergency contraception with abortion could deny rape victims access to this method and to the means of avoiding an unintended pregnancy.”

Blumenthal further stated that the rule “interferes with states’ rights because it can not be implemented without riding roughshod over existing state regulations and without causing states to lose billions of dollars in federal aid to deliver health care.”  This rule, stated Blumenthal, “would supercede carefully crafted Connecticut statutes arrived at through a painstaking and controversial process that ultimately balances the rights of women to health care and contraception with the rights of providers to follow individual moral and religious beliefs.”

Connecticut is one among 27 states with laws requiring health insurance plans that cover prescription drugs to provide equitable coverage for contraception.  Such state laws facilitating contraceptive access are at risk under this regulation, which extends sweeping protections to health care entities who seek to restrict coverage for reproductive health care. Last September, Blumenthal led a 13-state coalition (including Arizona, Illinois, Iowa, Maine, Maryland, Massachusetts, Montana, New Jersey, Oregon, Rhode Island, Utah and Vermont) calling on HHS to abandon the draft rule entirely, stating that the rule “puts personal agendas before patient care — protecting doctor objections, but entirely ignoring the rights of rape victims and others to access birth control and other vital services [and] upsets the careful balance between physician beliefs and a patient’s right to affordable, accessible health care.”   Connecticut was joined today in the suit by six other states, including California, Illinois, Massachusetts, New Jersey, Oregon and Rhode Island. 

Both Richards and Mary Jane Gallagher, President of NFPRHA, cited the potential economic and health costs of the rule to individuals, clinics, and states.

“Millions of men and women seek health care from Title X and other federally-funded clinics every day,” stated Gallagher.  These services run the gamut from counseling and contraception to breast and cervical cancer screening, prevention of sexually transmitted diseases, safe pregnancy services and other critical interventions that are “increasingly urgent in this economy as millions of people have lost their jobs and their health care insurance.”

If these regulations go into effect, Gallagher added, “We will have total chaos in an already stressed health care system particularly among low-income populations in greatest need.  Many of our members serve low-income populations who do not have the luxury of shopping around to find providers who will ensure they receive accurate and medically sound information on their most basic health care options.  In some cases, clients of our member organizations live 100 or more miles from the nearest clinic, underscoring the burden they already carry in accessing care.”

The groups expect the Obama Administration to support the suit.  To get rid of the regulations through the formal process, however, President Obama would have to initiate another review and public comment period that would take anywhere from 3 to 6 months, leaving untold numbers of women and men at the whim of providers who do not wish to offer essential services.  The injunction is therefore critical to ensure continuing coverage of basic services, the groups said.

These and other organizations also are looking to Congress for concurrent action.  Under discussion are several options, including passage of a resolution of disapproval of the HHS rule under the Congressional Review Act (CRA) that would repeal the rule outright.  Congress also could attach a rider to an appropriations bill that would block funds for enforcement of the rule.  Finally, some members of Congress are considering taking action against the broader scope of midnight regulations—on environment and health care among other such rules—suspending the effective dates of all rules for some period of time or to put in place an expedited review process.

But, noted Blumenthal, “the preliminary injunction is the ball game here.”

News Abortion

Parental Notification Law Struck Down in Alaska

Michelle D. Anderson

"The reality is that some young women face desperate circumstances and potentially violent consequences if they are forced to bring their parents into their reproductive health decisions," said Janet Crepps, senior counsel at the Center for Reproductive Rights. "This law would have deprived these vulnerable women of their constitutional rights and put them at risk of serious harm."

The Alaska Supreme Court has struck down a state law requiring physicians to give the parents, guardians, or custodians of teenage minors a two-day notice before performing an abortion.

The court ruled that the parental notification law, which applies to teenagers younger than 18, violated the Alaska Constitution’s equal protection guarantee and could not be enforced.

The ruling stems from an Anchorage Superior Court decision that involved the case of Planned Parenthood of the Great Northwest and the Hawaiian Islands and physicians Dr. Jan Whitefield and Dr. Susan Lemagie against the State of Alaska and the notification law’s sponsors.

In the lower court ruling, a judge denied Planned Parenthood’s requested preliminary injunction against the law as a whole and went on to uphold the majority of the notification law.

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Planned Parenthood and the physicians had appealed that superior court ruling and asked for a reversal on both equal protection and privacy grounds.

Meanwhile, the State of Alaska and the notification law’s sponsors appealed the court’s decision to strike some of its provisions and the court’s ruling.

The notification law came about after an initiative approved by voters in August 2010. The law applied to “unemancipated, unmarried minors” younger than 18 seeking to terminate a pregnancy and only makes exceptions in documented cases of abuse and medical emergencies, such as one in which the pregnant person’s life is in danger.

Justice Daniel E. Winfree wrote in the majority opinion that the anti-choice law created “considerable tension between a minor’s fundamental privacy right to reproductive choice and how the State may advance its compelling interests.”

He said the law was discriminatory and that it could unjustifiably burden “the fundamental privacy rights only of minors seeking pregnancy termination, rather than [equally] to all pregnant minors.”

Chief Justice Craig Stowers dissented, arguing that the majority’s opinion “unjustifiably” departed from the Alaska Supreme Court’s prior approval of parental notification.

Stowers said the opinion “misapplies our equal protection case law by comparing two groups that are not similarly situated, and fails to consider how other states have handled similar questions related to parental notification laws.”

Center for Reproductive Rights (CRR) officials praised the court’s ruling, saying that Alaska’s vulnerable teenagers will now be relieved of additional burdensome hurdles in accessing abortion care. Attorneys from the American Civil Liberties Union, CRR, and Planned Parenthood represented plaintiffs in the case.

Janet Crepps, senior counsel at CRR, said in a statement that the “decision provides important protection to the safety and well-being of young women who need to end a pregnancy.”

“The reality is that some young women face desperate circumstances and potentially violent consequences if they are forced to bring their parents into their reproductive health decisions. This law would have deprived these vulnerable women of their constitutional rights and put them at risk of serious harm,” Crepps said.

CRR officials also noted that most young women seeking abortion care involve a parent, but some do not because they live an abusive or unsafe home.

The American Medical Association, the American College of Obstetricians and Gynecologists, and the Society for Adolescent Medicine have said minors’ access to confidential reproductive health services should be protected, according to CRR.

Analysis Law and Policy

Indiana Court of Appeals Tosses Patel Feticide Conviction, Still Defers to Junk Science

Jessica Mason Pieklo

The Indiana Court of Appeals ruled patients cannot be prosecuted for self-inducing an abortion under the feticide statute, but left open the possibility other criminal charges could apply.

The Indiana Court of Appeals on Friday vacated the feticide conviction of Purvi Patel, an Indiana woman who faced 20 years in prison for what state attorneys argued was a self-induced abortion. The good news is the court decided Patel and others in the state could not be charged and convicted for feticide after experiencing failed pregnancies. The bad news is that the court still deferred to junk science at trial that claimed Patel’s fetus was on the cusp of viability and had taken a breath outside the womb, and largely upheld Patel’s conviction of felony neglect of a dependent. This leaves the door open for similar prosecutions in the state in the future.

As Rewire previously reported, “In July 2013 … Purvi Patel sought treatment at a hospital emergency room for heavy vaginal bleeding, telling doctors she’d had a miscarriage. That set off a chain of events, which eventually led to a jury convicting Patel of one count of feticide and one count of felony neglect of a dependent in February 2015.”

To charge Patel with feticide under Indiana’s law, the state at trial was required to prove she “knowingly or intentionally” terminated her pregnancy “with an intention other than to produce a live birth or to remove a dead fetus.”

According to the Indiana Court of Appeals, attorneys for the State of Indiana failed to show the legislature had originally passed the feticide statute with the intention of criminally charging patients like Patel for terminating their own pregnancies. Patel’s case, the court said, marked an “abrupt departure” from the normal course of prosecutions under the statute.

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“This is the first case that we are aware of in which the State has used the feticide statute to prosecute a pregnant woman (or anyone else) for performing an illegal abortion, as that term is commonly understood,” the decision reads. “[T]he wording of the statute as a whole indicate[s] that the legislature intended for any criminal liability to be imposed on medical personnel, not on women who perform their own abortions,” the court continued.

“[W]e conclude that the legislature never intended the feticide statute to apply to pregnant women in the first place,” it said.

This is an important holding, because Patel was not actually the first woman Indiana prosecutors tried to jail for a failed pregnancy outcome. In 2011, state prosecutors brought an attempted feticide charge against Bei Bei Shuai, a pregnant Chinese woman suffering from depression who tried to commit suicide. She survived, but the fetus did not.

Shuai was held in prison for a year until a plea agreement was reached in her case.

The Indiana Court of Appeals did not throw out Patel’s conviction entirely, though. Instead, it vacated Patel’s second charge of Class A felony conviction of neglect of a dependent, ruling Patel should have been charged and convicted of a lower Class D felony. The court remanded the case back to the trial court with instructions to enter judgment against Patel for conviction of a Class D felony neglect of a dependent, and to re-sentence Patel accordingly to that drop in classification.

A Class D felony conviction in Indiana carries with it a sentence of six months to three years.

To support Patel’s second charge of felony neglect at trial, prosecutors needed to show that Patel took abortifacients; that she delivered a viable fetus; that said viable fetus was, in fact, born alive; and that Patel abandoned the fetus. According to the Indiana Court of Appeals, the state got close, but not all the way, to meeting this burden.

According to the Indiana Court of Appeals, the state had presented enough evidence to establish “that the baby took at least one breath and that its heart was beating after delivery and continued to beat until all of its blood had drained out of its body.”

Therefore, the Court of Appeals concluded, it was reasonable for the jury to infer that Patel knowingly neglected the fetus after delivery by failing to provide medical care after its birth. The remaining question, according to the court, was what degree of a felony Patel should have been charged with and convicted of.

That is where the State of Indiana fell short on its neglect of a dependent conviction, the court said. Attorneys had failed to sufficiently show that any medical care Patel could have provided would have resulted in the fetus surviving after birth. Without that evidence, the Indiana Court of Appeals concluded, state attorneys could not support a Class A conviction. The evidence they presented, though, could support a Class D felony conviction, the court said.

In other words, the Indiana Court of Appeals told prosecutors in the state, make sure your medical experts offer more specific testimony next time you bring a charge like the one at issue in Patel’s case.

The decision is a mixed win for reproductive rights and justice advocates. The ruling from the court that the feticide statute cannot be used to prosecute patients for terminating their own pregnancy is an important victory, especially in a state that has sought not just to curb access to abortion, but to eradicate family planning and reproductive health services almost entirely. Friday’s decision made it clear to prosecutors that they cannot rely on the state’s feticide statute to punish patients who turn to desperate measures to end their pregnancies. This is a critical pushback against the full-scale erosion of reproductive rights and autonomy in the state.

But the fact remains that at both trial and appeal, the court and jury largely accepted the conclusions of the state’s medical experts that Patel delivered a live baby that, at least for a moment, was capable of survival outside the womb. And that is troubling. The state’s experts offered these conclusions, despite existing contradictions on key points of evidence such as the gestational age of the fetus—and thus if it was viable—and whether or not the fetus displayed evidence of life when it was born.

Patel’s attorneys tried, unsuccessfully, to rebut those conclusions. For example, the state’s medical expert used the “lung float test,” also known as the hydrostatic test, to conclude Patel’s fetus had taken a breath outside the womb. The test, developed in the 17th century, posits that if a fetus’ lungs are removed and placed in a container of liquid and the lungs float, it means the fetus drew at least one breath of air before dying. If the lungs sink, the theory holds, the fetus did not take a breath.

Not surprisingly, medical forensics has advanced since the 17th century, and medical researchers widely question the hydrostatic test’s reliability. Yet this is the only medical evidence the state presented of live birth.

Ultimately, the fact that the jury decided to accept the conclusions of the state’s experts over Patel’s is itself not shocking. Weighing the evidence and coming to a conclusion of guilt or innocence based on that evidence is what juries do. But it does suggest that when women of color are dragged before a court for a failed pregnancy, they will rarely, if ever, get the benefit of the doubt.

The jurors could have just as easily believed the evidence put forward by Patel’s attorneys that gestational age, and thus viability, was in doubt, but they didn’t. The jurors could have just as easily concluded the state’s medical testimony that the fetus took “at least one breath” was not sufficient to support convicting Patel of a felony and sending her to prison for 20 years. But they didn’t.

Why was the State of Indiana so intent on criminally prosecuting Patel, despite the many glaring weaknesses in the case against her? Why were the jurors so willing to take the State of Indiana’s word over Patel’s when presented with those weaknesses? And why did it take them less than five hours to convict her?

Patel was ordered in March to serve 20 years in prison for her conviction. Friday’s decision upends that; Patel now faces a sentence of six months to three years. She’s been in jail serving her 20 year sentence since February 2015 while her appeal moved forward. If there’s real justice in this case, Patel will be released immediately.